Karuppiya v. Kuttaikulam @ Pudukulam — 1991 DIGILAW 375 (MAD)

Judgment :- 1. The appellant is the defendant before the trial Court.. The respondent is one Pudukulam @ Kuttaikulam Vahayara Trust Pattukottai represented by its Managing Trustee C. Veeraswamy Chettiar. The Trust instituted O.S. 184 of 1981 on the file of the learned District Munsif of Pattukottai for recovery of possession of the suit site and superstructure therein after demolishing the additional shed put up by the appellant in the northern portion of the suit property and for recovery of arrears of rent or damage s. There is no dispute that the appellant is running a hotel in the name and style of ‘Chetty Nadu Unavu Viduthi’ in the disputed premises. The tenancy is oral. The appellant resisted the suit alleging that the Trust is the owner of the site only and that there is no tenancy with reference to building. According to him the superstructure originally belonged to one Govindaraju from whom he had purchased the same under Ex. Bl the sale deed dated 29.12.1970. He further contended that lease arrangement was on permanent basis and he was entitled to the benefits of Madras City Tenants Protection Act and the suit filed by one of the trustees alone is not maintainable. 2. The trial Court found that the ownership of the superstructure vested with the Respondent/Trust and tenant is liable to deliver the suit building to the Trust and that he had to seek his relief under the Tamil Nadu City Tenants Protection Act is respect of the additional shed put up by the appellant. Both the parties took up the matter in appeal before the Sub Court Pattukottai. While A.S. 82 of 1982 filed by the plaintiff/Trust related to the demolition of the shed put up in the northern portion of the suit property and delivery of vacant possession, the appeal by the tenant in A.S. 12 of 1983 related to the verdict on the superstructure. The lower appellate Court dismissed A.S. 12 of 1983 without cost and allowed A.S. 82 of 1982 and ordered delivery of possession of the entire suit property after removal of the superstructure. In this second appeal the tenant assails the decree and judgment of the learned subordinate Judge in both the appeals. 3. The questions that arise for consideration now are:— 1. Whether the Trust is the owner of the suit superstructure? 2. In this second appeal the tenant assails the decree and judgment of the learned subordinate Judge in both the appeals. 3. The questions that arise for consideration now are:— 1. Whether the Trust is the owner of the suit superstructure? 2. Whether the suit instituted by one of the trustees alone is maintainable? 3. Whether the lower appellate Curt is right in holding that the appellant is not entitled to the benefits of Madras City Tenants Protection Act? 4. In C.M.P. 4736 of 1991 the respondent/Trust sought for the reception of the minutes book of the Trust as additional evidence under O. 41, R. 27, C.P.C. On the ground that the Managing Trustee Veeraswamy Chettiar was authorised by resolution of the Trust Board to institute legal proceedings on behalf of the trust. The appellant in his counter contended that Thiru Shanmugam who has filed the affidavit as managing trustee is not a party to the proceedings. The alleged document is not a genuine one and has to be proved according to law. Since the authority of the Trust to institute legal proceedings on behalf of the Trust without impleading the other Trustees is one of the points in controversy in the second appeal, certainly there could be no objection for receiving the minutes book as additional evidence on behalf of the plaintiff/Trust while its probative value could be discussed at the appropriate price. So C.M.P. 4736 of 1991 is allowed and the minutes book is received as additional evidence and marked as Ex. All. 5. Ex. A1 is the lease deed dated 1.1.1961 entered into between the former tenant Appanatha Devar and Veeraswamy Chettiar the Managing Trustee of the Trust. Ex. A2 is another lease deed dated 1.5.1965 executed by one Govindaraj in favour of the Managing Trustee. The property leased out under Ex. A1 is survey No. 80/3 with Door No. 107. An extent of 3 cents of land and the building thereon in survey No. 80/3 is the subject matter of present dispute. Ex. A2 the unregistered lease deed also refers to Door No. 107 in survey No. 80/3. While the superstructure mentioned in Ex. A1 is a thatched house that in Ex. A2 is a tiled house. In Ex A1 the tenant has been directed to pay the house tax to the panchayat and remit the receipt to the Managing Trustee. Ex. A2 the unregistered lease deed also refers to Door No. 107 in survey No. 80/3. While the superstructure mentioned in Ex. A1 is a thatched house that in Ex. A2 is a tiled house. In Ex A1 the tenant has been directed to pay the house tax to the panchayat and remit the receipt to the Managing Trustee. The appellate claims to have purchased the superstructure from the former tenant Govindaraj under the original of Ex. Bl the sale deed dated 29.12.1990. The property conveyed is described as Door No. 153 in survey No. 70/1. Since the suit property is in survey No. 80/3 the lower appellate Court has held that this document does not relate to the suit superstructure. However, a close scrutiny of the boundary description therein would indicate that the building is situate North of Big Bazaar Street, East of Kubera Vilas Hotel, South of Kuttaikulam of the suit Trust, and west of Kasinatha Chettiars fertilizer depot. Whereas the plaint property is also north of Big Bazaar street, East of Trust property leased out to one Nagarajan, South of Kuttaikulam belonging to Trust and west of Kasinatha Chettiars shop. So there could be no doubt that Ex. B. 1 relates to the suit property only. In this sale deed Govindaraj has stated that in the land taken out on lease from the plaintiff Trust he has built the superstructure with his own funds. Excepting this recital in Ex. Bl there is nothing on record to show that the vendor Govindarajan is the real owner of the building. The said Govindarajan has not gone into the witness box to speak about the construction. The appellant as D.W.I merely deposes that he purchased the superstructure under the original of Ex. Bl with the knowledge of Veeraswamy Chettiar. He concedes that there was formerly a thatched shed in this site. He does not know who put up the thatched shed. He does not know that Govindaraj became the tenant in 1965 under Ex. A2. Till his purchase the municipal assessment stood in the name of respondent Trust. Whereas we find from Ex. A1 that on 1.1.1961 Appanatha Devar has taken on lease the 3 cents of land in survey No. 80/3 alone with the thatched shed thereon and the property Teased out in Ex. A2. Till his purchase the municipal assessment stood in the name of respondent Trust. Whereas we find from Ex. A1 that on 1.1.1961 Appanatha Devar has taken on lease the 3 cents of land in survey No. 80/3 alone with the thatched shed thereon and the property Teased out in Ex. A2 in favour of Govindarajulu on 1.4.1965 is described as the tiled shed in Survey No. 80/3. Had really Govindaraj put up the superstructure the lease would have been only in respect of the vacant site. 6. Further D.W.I admits in cross-examination that Kasinatha Chettiar is also a tenant under the plaintiff Trust. There is a common wall for his shop and the shop of Kasinatha Chittiaar. This feature would also go to show that both the superstructure belong to the same person. 7. Ex. A10 is the leased deed executed by Kasinatha Chettiar on 15.12.1959 in favour of the plaintiff Trust. The eastern boundary of this shop is described as that of the Trust in the possession of Appanatha Devar. This would indicate that even in the year 1959 the Trust was the owner of the superstructure in suit site. 8. Ex. A9 is the certified copy of the extract from the Register of House Rent control cases in the Court of District Munsif of Pattukottai. This discloses that Veerasamy Chettiar as the Managing Trustee of the respondent Trust has filed on eviction application against Govindaraj in respect of the tiled structure which is the subject matter of the second appeal on the ground wilful default in payment of rent. This petition was dismissed on 4.9.1965 as not pressed. D.W.I says that he has no knowledge about this petition. However this circumstance also improbablises the contention of the appellant that the vendor Govindaraj built the superstructure in the suit site. 9. The appellant relied on Ex. B5 the order of the Municipal Commissioner regarding change of registry in respect of the super structure in his name in support of his contention. This document goes to show that till 30.11.1972 the assessment for the super structure stood in the name of the trust. Had really Govindaraj built the house his name should have occurred in the municipal records even at the time of Ex. A2 dated 1.5.1965. This document goes to show that till 30.11.1972 the assessment for the super structure stood in the name of the trust. Had really Govindaraj built the house his name should have occurred in the municipal records even at the time of Ex. A2 dated 1.5.1965. The lower appellate Court has rightly pointed out that probably the Commissioner would have ordered transfer of assessment in the name of the appellant on the basis of the recitals in Ex. Bl. 10. Exs. B6 to B10 are the house tax receipts during 1972-74 standing in the name of the appellant. They cannot help the appellant in establishing his title to the building. 11. Exs. A3 and A5 to A8 are all account books pertaining to the Trust. P.W.I the Managing Trustee Veeraswamy Chettiar does not speak anything about the entries herein. P.W. 2 Kandasamy claims to be the Accountant of the Trust. Though he deposes about the contents of Exs. A7 and A8, he admits that he has not made the entries in the account books. The Accountant who has written the account is alive. No doubt under S. 34 of the Evidence Act entries in books of accounts regularly kept in the course of business are relevant whenever they refer to a matter into which the Court has enquired. But such statements shall not alone be sufficient evidence to charge any person with liability. There has to be further evidence to prove payment of the money which may appear in the books of account. In any event in the absence of the evidence of the scribe who has made the entries, these documents could not help the respondent in any manner. 12. However from the other materials we have already adverted to which is same that the lower appellate Court has rightly negatived the appellants claim to the superstructure. 13. The trial Court found that the appellant was entitled to the benefits of Tamil Nadu City Tenants Protection Act in respect of the additional shed put up by him in the vacant space on the northern portion of the suit property. We have already seen that the tenancy was m respect of the building and the site and the appellant was not a tenant m respect of the site only. We have already seen that the tenancy was m respect of the building and the site and the appellant was not a tenant m respect of the site only. Once we hold that the demised property is not a vacant site it necessarily follows that any space not occupied by the building portion therein must be considered only as an appurtenant to the building. Further as the lower appellate Court has held the appellant has constructed the shed only after July 1974 whereas the Act was extended to Pattukottai Municipality on 31.1.1973. so the claim of the appellant that he is entitled to the benefits of Tamil Nadu City Tenants Protection Act is unsustainable. 14. The next point urged by the learned counsel for the appellant is that Veeraswamy Chettiar has no right to institute the suit as Managing Trustee. He has not proved that he is the managing trustee. Unless there is a resolution passed empowering him to take action the suit is not maintainable. However, we find from Ex. All the minuts book of the Trust Board that on 25.1.1957 the Board has authorised the Managing Trustee Veerasamy Chettiar to initiate all legal proceedings in connection with the trust properties. This minute book is an ancient document and no proof of its execution is necessary. The seal of the Court of District Munsif of Pattukottai of the year 1957 appears herein which vouchsafes, for its genuinency. So the authority of Veerasamy Chettiar to institute the suit cannot be questioned. 15. The learned counsel for the appellant also contended that the suit instituted by one of the trustees alone without impleading the other trustees is bad in law. S. 48 of the Trusts Act lays down that when there are more trustees than one, all must join in the execution of the trust, except where the instrument of trust otherwise provides. In Abdul Rahaman v. Angur Bala AIR 1974 Culcutta 16 it has been laid down that the Managing trustee has a right only to administer the trust property under the Super vision of the trustees. Creation of tenancy in the context of tenancy enactment applicable, practi cally amounted to alienation of property. Such power cannot be an element of administration of trust property. The managing trustees had no power or authority to create such lease. Creation of tenancy in the context of tenancy enactment applicable, practi cally amounted to alienation of property. Such power cannot be an element of administration of trust property. The managing trustees had no power or authority to create such lease. The Managing Trustee acting singly without concur rence of other trustees cannot create a lease in respect of the trust property. In Atmaram v. Gulamhusein AIR Gujarat 113 the Full Bench has held that unless the instrument of trust otherwise provides, all cotrustees must join in filing a suit to recover possession of the property from the tenant. On the strength of these decisions and S. 48 of Trusts Act the learned counsel for the appellant contended that the suit instituted by Managing Trustee alone without the other trustee joining him is not maintainable. 16. On the other hand the learned counsel for the respondent points out that the provisions of the Indian Trust Act including S. 48 are ap plicable only in the case of a private trust. The Preamble of the Act itself is to the effect that it has been enacted whereas it is expedient to define and amend the law relating to private trusts and trustees. In Shrimati Shanti Devi v. State AIR 1982 Delhi 453 a Division Bench of the Delhi High Court has laid down “The Trust Act applies to private trusts only other than religious or charitable endowments. The most fundamental distinction between private and public trusts depends upon the character of the person for whose benefit they are created. The essential difference is that in the former the beneficiaries are defined and ascertained individuals or who within a definite time can be definitely ascertained but in the latter the beneficial interest must be vested in an uncertain and fluctuating body of person either the public at large or some considerable portion of it answering a particular” description.” The Public Trusts are governed by S. 92, Civil Procedure Code only. Further, as the Managing Trustee is authorised by the other Trustees to initiate action against tenant as per Ex. All the the plaintiff cannot be non-suited on the ground that the other Trustees are not parties to the action. As it has been held in Nilamani v. Appanna AIR 1936 Madras=43 L.W. 222. Further, as the Managing Trustee is authorised by the other Trustees to initiate action against tenant as per Ex. All the the plaintiff cannot be non-suited on the ground that the other Trustees are not parties to the action. As it has been held in Nilamani v. Appanna AIR 1936 Madras=43 L.W. 222. “Arrangements for management of an institution of trust are not in any sense an alienation of the office or delegation of the duties of the office because ex hypothesis the arrangement is made between persons who are jointly entitled to act as trustees.” So there is no force in this claim of the appellant. 17. In the result the second appeal fails and is dismissed with costs.